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“The Nightmare Scenario SCOTUS is Plotting For the 2024 Election Takeover” – Fear Mongering Over Upcoming Moore v. Harper Case

“The Nightmare Scenario SCOTUS is Plotting For the 2024 Election Takeover” – Fear Mongering Over Upcoming Moore v. Harper Case

Lefty Radio Host Thom Hartmann: “Six Republicans on the Supreme Court just announced — a story that has largely flown under the nation’s political radar — that they’ll consider pre-rigging the presidential election of 2024.”

Here we go again. The End of Democracy. You know, like when the Supreme Court ruled that abortion rights should be determined through the state electoral process, not by federal courts. And when it declared that the EPA could exercise powers over major issues only if the duly-elected Congress clearly enabled such action in legislation. Such a threat!

Here we go again. The politicians and media that brought you those End of Democracy narratives, and the Russia Collusion hoax, have a new demon to spend the next several months foaming about: Moore v. Harper, which the Supreme Court recently agreed to hear next term.

Sounds sooooooo scary. Ian Millheiser at Vox writes, A new Supreme Court case is the biggest threat to US democracy since January 6

The Supreme Court’s announcement on Thursday that it will hear Moore v. Harper, a case that could concentrate an unprecedented amount of power in gerrymandered state legislatures, should alarm anyone who cares about democracy.

The case is perhaps the gravest threat to American democracy since the January 6 attack.

An Op-ed in WaPo is equally dramatic, A new Supreme Court case threatens another body blow to our democracy

So what’s all this fear mongering about? Here’s how the Emergency Application for a Stay, filed by Republicans in February 2022, framed it:

The federal constitution expressly provides that the manner of federal elections shall “be prescribed in each State by the Legislature thereof.” U.S. CONST. art. I, § 4. Yet barring this Court’s immediate intervention, elections during the 2022 election cycle for the U.S. House of Representatives in North Carolina will be conducted in a manner prescribed not by the State’s General Assembly but rather by its courts. “The Constitution provides that state legislatures”—not “state judges”—“bear primary responsibility for setting election rules,” Democratic Nat’l Comm. v. Wisconsin State Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch, J., concurring in denial of application to vacate stay), and this Court should intervene to protect the Constitution’s allocation of power over this matter of fundamental importance to our democratic system of government.

In an order entered on February 4, the North Carolina Supreme Court invalidated the North Carolina General Assembly’s congressional maps and remanded to state trial court for remedial proceedings. Rather than seek immediate review in this Court, Applicants engaged in a good-faith effort to craft a congressional map that would be valid under the state Supreme Court’s order. Yet in an order entered on February 23, the North Carolina trial court rejected that map and instead mandated the use of a new map that had been created by a group of Special Masters and their team of assistants—who, to make matters worse, designed their own, judicially-crafted map after engaging in ex parte communications with experts for the plaintiffs. Applicants immediately sought a stay from the North Carolina Supreme Court, but that stay was promptly denied.

If a redistricting process more violative of the U.S. Constitution exists, it is hard to imagine it. Without this Court’s emergency intervention, the North Carolina courts’ unconstitutional, judicially created congressional maps will be used to conduct the May 17, 2022 primary election….

In March 2002, the Court denied an emergency stay over the dissent of three Justices:

Application (21A455) denied by the Court. Justice Kavanaugh concurring in the denial of the application for stay. (Detached opinion). Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting from the denial of the application for stay. (Detached opinion).

Justice Alito, joined by Thomas and Gorsuch, would have granted a stay. Justice Alito’s opinion explained the importance of the issue, and citing to numerous cases arising out of the 2020 election in which the Court declined to resolve it:

I would grant the application for a stay.

This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections. There can be no doubt that this question is of great national importance. But we have not yet found an opportune occasion to address the issue. See, e.g., Democratic National Committee v. Wisconsin State Legislature, 592 U. S. ___ (2020); Scarnati v. Boockvar, 592 U. S. ___ (2020); Moore v. Circosta, 592 U. S. ___ (2020); Wise v. Circosta, 592 U. S. ___ (2020); Bush v. Gore, 531 U. S. 98, 112 (2000) (Rehnquist, C. J., concurring); see also Republican Party of Pennsylvania v. Degraffenreid, 592 U. S. ___ (2021) (THOMAS, J., dissenting from denial of certiorari); id., at ___ (ALITO, J., dissenting from denial of certiorari); Wisconsin State Legislature, 592 U. S., at ___ (GORSUCH, J., concurring). We will have to resolve this question sooner or later, and the sooner we do so, the better. This case presented a good opportunity to consider the issue, but unfortunately the Court has again found the occasion inopportune.

In my view, the applicants have shown that the question presented by this case easily satisfies our usual criteria for certiorari, see this Court’s Rule 10, and it is also likely that they would prevail on the merits if review were granted. The Elections Clause provides that rules governing the “Times, Places and Manner of holding Elections for Senators and Representatives” must be “prescribed in each State by the Legislature thereof.” Art. I, §4, cl. 1 (emphasis added). This Clause could have said that these rules are to be prescribed “by each State,” which would have left it up to each State to decide which branch, component, or officer of the state government should exercise that power, as States are generally free to allocate state power as they choose. But that is not what the Elections Clause says. Its language specifies a particular organ of a state government, and we must take that language seriously….

Both sides advance serious arguments, but based on the briefing we have received, my judgment is that the applicants’ argument is stronger. The question presented is one of federal not state law because the state legislature, in promulgating rules for congressional elections, acts pursuant to a constitutional mandate under the Elections Clause. Cf. Bush, 531 U. S., at 113 (Rehnquist, C. J., concurring) (compliance with the Electors Clause “presents a federal constitutional question”). And if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections. I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.

Justice Kavanaugh felt the case needed to be considered on a regular schedule, not on an emergency basis:

I agree with JUSTICE ALITO that the underlying Elections Clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the Court definitively resolves it. Therefore, if the Court receives petitions for certiorari raising the issue, I believe that the Court should grant certiorari in an appropriate case—either in this case from North Carolina or in a similar case from another State. If the Court does so, the Court can carefully consider and decide the issue next Term after full briefing and oral argument.

A Petition for a Writ of Certiorari, asking the court to hear the case, was filed in due course. On June 30, 2022, the Court granted the Petition, and agreed to hear the case, with the following Question Presented:

Whether a State’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.

So that’s what all the fear mongering is about. The fear is the the Supreme Court may interpret the Elections Clause according to its plain terms.

Steve Bennen on the Maddow blog MSNBC website explains the Democrat political fear:

Rick Hasen, a professor and an election law expert at the University of California at Irvine, told NBC News that a Republican victory in this case “would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. It could essentially neuter the ability of state courts to protect voters under provisions of state constitutions against infringement of their rights.”

A Politico report added, “With 30 state legislatures currently in Republican hands, GOP state legislative leaders would be strongly positioned to skew maps in their party’s favor and to make changes Republican have sought to voting procedures.”

A HuffPost analysis went further. “Siding with the North Carolina Republicans could effectively give all electoral authority to state legislatures, including in the approval of the winner of the state’s Electoral College electors,” Paul Blumenthal argued.

There can be no doubt that the Supreme Court’s just completed term made clear just how far the institution has swung to the right, but that doesn’t mean the Republican-appointed justices won’t go even further.

I don’t think the case presents the issue as dramatically as these commenters say. The issue is whether state courts could invalidate political gerrymandering in the absence of any legislation or clear state constitutional provisions setting forth guidelines. In NY State, you will recall, the state courts rejected partisan gerrymandering because it was prohibited by state law, not because the judges felt is was unfair in some general sense.

While the Moore case involves gerrymandering of congressional districts, it would have implications for presidential elections, where Republicans complained in 2020 that judges in key states like Pennsylvania overturned and rewrote voting laws to facilitate Democrat get-out-the-vote efforts. That’s what Democrats are really afraid of, that their judicial ace in the hole for presidential elections may be removed.

How will the Court rule? No leak needed. Read the Alito Dissent on the stay motion. That reads like a strong candidate for a majority opinion.

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Comments

smalltownoklahoman | July 3, 2022 at 9:19 pm

Incoming flurry of activity to amend blue state constitutions to protect the Dem’s preferred form of cheating.

    Strangely enough that’s how the system should work. As stated above as long as the changes follow State law then that’s the way it should be.

    Problem is, as we saw in the last election, when the executive just makes changes as it sees fit absent the legislators making the changes as per State law/constitution/other hand waving shit here.

      PlusUltra in reply to mailman. | July 10, 2022 at 2:37 pm

      Yes, there’s an excessive encroachment of the federal judiciary in areas of state legislative jurisdiction. I think part of the problem has been the lassitude of Congress to apply legislation.

    PlusUltra in reply to smalltownoklahoman. | July 10, 2022 at 3:09 pm

    SCOTUS a lot in the news; abortions, guns, immigration, elections…

JackinSilverSpring | July 3, 2022 at 9:24 pm

Why isn’t the rule in the Constitution Constitutional? The DemoncRats are insane. If they like the rule, there is a wsy to change it. Amend it. If that cannot be done, then so be it. It is the law of the Land.

    JackinSilverSpring in reply to JackinSilverSpring. | July 3, 2022 at 9:25 pm

    If the don’t like the rule.

    You ever met a democrat? The Constitution isn’t really a set of rules, more like guidelines to them.

    https://www.youtube.com/watch?v=k9ojK9Q_ARE

      Subotai Bahadur in reply to 4fun. | July 3, 2022 at 11:08 pm

      Guidelines to be gotten around.

      Subotai Bahadur

      mailman in reply to 4fun. | July 4, 2022 at 2:18 am

      This seems to be the major problem for Democrats, they are being FORCED to adhere to the constitution. And they hate that 🤣🤣

      Not even guidelines, more like suggestions.

      Gosport in reply to 4fun. | July 4, 2022 at 6:26 am

      Guidelines might be too strong a term. How about suggestions?

      Fatkins in reply to 4fun. | July 4, 2022 at 7:35 am

      That’s projection if ever I saw it lol, The Scotus decisions in recent days have read like one rule for me but not for thee, The twisted logic, cherry picking, and downright lies have been a sight to behold.

        4rdm2 in reply to Fatkins. | July 4, 2022 at 8:22 am

        So that is what you call actually sticking to the language of the law rather than emanations of penumbras of liberal wishcasting?

          Fatkins in reply to 4rdm2. | July 4, 2022 at 8:26 am

          I’ve literally just pointed out that Scotus in its conservative form doesn’t stick to the language of the law as you frame it. Its decisions are a gigantic mess. The projecting is all yours buddy.

          CommoChief in reply to 4rdm2. | July 4, 2022 at 8:39 am

          Fatkins offer examples that illustrate your contention. Repetition of vague claims won’t impress anyone.

          4rdm2 in reply to 4rdm2. | July 4, 2022 at 9:11 am

          Fatkins …. Nowhere in your post do you do what you just said.

          Fatkins in reply to 4rdm2. | July 4, 2022 at 10:42 am

          Lets take the overturning of Roe V Wade.

          One of the main arguments against Roe V Wade in Dobbs v Jacksons= Women’s Health Organization is that abortion rights are deeply rooted in American history. Notably forgetting that actually when you look at the state laws (in some cases) originally they didn’t consider fetuses’ people until quickening and even then that was based upon the women’s opinion i.e. when they felt the quickening. Queue failure to analyze the full historical context and cherry picking of facts. That’s example 1, the entire historical underpinning of the originalist doctrine follows this same principle (cherry picking of historic facts).

          Example 2 – When you compare the use of historical facts used in striking down NYC gun laws vs overturning Roe v Wade in one case Alito harks back to history of the 1300s in the former the decision notes that this shouldn’t apply (the context being concealed gun laws).

          Id suggest you read the dissenting opinion on overturning Roe V Wade.

          This quote is striking to me

          “Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. The same could be said, though, of most of the rights the majority claims it is not tampering with,” the opinion reads. “So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

          ConradCA in reply to 4rdm2. | July 4, 2022 at 6:11 pm

          What part of “the people’s right to keep and bear arms shall not be infringed” did the SC violate?

          Milhouse in reply to 4rdm2. | July 4, 2022 at 7:40 pm

          That until 1973 nobody thought abortion was a right is a simple fact.

          When the 9th and 14th amendments were ratified certainly nobody thought it was a right. It was illegal in all states, and it never occurred to anyone that this was a problem. Even if it hadn’t been illegal, that would just mean it wasn’t a crime, not that it was a right. But in fact it was illegal. Not just after quickening, but before too. Alito quotes Blackstone on that point: Blackstone proves that under the common law abortion at all stages of pregnancy is a crime; before quickening it can’t be punished because how do you prove the woman ever knew she was pregnant? But a crime it was.

          The claim to the contrary in Blackmun’s opinion is simply wrong, and Alito proves it is wrong. Most of the “facts” on which Blackmun’s opinion was based were also false. Deliberately fabricated for the most part. For instance the claim that about 1,000,000 illegal abortions were being performed every year was simply made up out of thin air, for propaganda purposes and to mislead the court. So was the claim that thousands of women were dying from “back-alley abortions”. It just wasn’t happening. The claim that Jane Doe had been raped was a lie. The claim that 60% of Americans supported legal abortion was likewise a lie. So it’s no surprise that they lied about the historical state of the law, or that the supreme court lapped it all up without question.

          Fatkins in reply to 4rdm2. | July 6, 2022 at 12:10 pm

          @Milhouse

          With respect to historic laws. Wrong it absolutely was not illegal to have an abortion before quickening under the laws of relevant states that had that provision. that’s just fact. Alitos been heavily criticized for cherry picking his historical facts. The reality is the originalist doctrine is incoherent on every level.

          Milhouse in reply to 4rdm2. | July 7, 2022 at 12:50 am

          Fatkins, you are just wrong. Blackstone conclusively proved that although under the common law abortion before quickening was never prosecuted, it was still a crime. And Blackstone is the most important source there is for how founding-era Americans understood their rights.

        Fatkins, add this to your research of the origins of abortion “rights”:

        https://www.youtube.com/watch?v=KB98grsJE-c

        Planned Parenthood is the most successful KKK program and is still in place. I am sure this will go in one ear and out the other. Legal abortion was instituted to address the Margaret Sangers who wanted to exterminate “undesirable members” of the population via euthanasia. Blacks were front and center. Close second were Christians.

        Make sure you bring that up next time you discuss the “historic record” revealing abortion “rights”. “Abortion” is a euphemism for “extermination”.

          Fatkins in reply to Pasadena Phil. | July 6, 2022 at 12:06 pm

          That’s dumb, citing a specifics persons views concerning eugenics is entirely separate from the abortion question. Again cherry picking try again

        Milhouse in reply to Fatkins. | July 4, 2022 at 7:46 pm

        I’ve literally just pointed out that Scotus in its conservative form doesn’t stick to the language of the law as you frame it.

        You haven’t pointed out any such thing, you’ve just asserted it. It’s not even close to being true. On the contrary, whether you agree with its recent decisions or not, you can’t claim they’re inconsistent with each other. They’re all of a piece, asserting that the constitution means what it plainly says.

          Fatkins in reply to Milhouse. | July 6, 2022 at 12:03 pm

          Wrong, again id refer you to the dissenting opinion on the overturning of Roe v Wade. The Court opinion is widely considered to be a joke. Historical cherry picking, contradictory with other statements in other cases. Its a supreme court that is rapidly turning delegitimizing itself

          Milhouse in reply to Milhouse. | July 7, 2022 at 12:52 am

          Widely considered by whom? Not by anyone serious. The decisions are all completely consistent with each other. And the Dobbs dissent is incoherent and illogical. A real joke, just like the original Roe decision was.

        Arminius in reply to Fatkins. | July 8, 2022 at 4:47 am

        Fats, the pretzel logic, cherry picking, and downright lies are all on your and your fellow travelers’ side.

        I enjoyed this specious argument of yours further down thread:

        One of the main arguments against Roe V Wade in Dobbs v Jacksons= Women’s Health Organization is that abortion rights are deeply rooted in American history. Notably forgetting that actually when you look at the state laws (in some cases) originally they didn’t consider fetuses’ people until quickening and even then that was based upon the women’s opinion i.e. when they felt the quickening.

        Yes, that’s your main argument. It’s the best pro aborts can do. And it’s a laughably weak and unsupportable argument.

        In the 29th, 19th, 18th, or earlier centuries no one suffered from the modern mental disorders of the left. They knew perfectly well what a man was, a woman was, that a man can’t become a woman or vice versa, and any offspring that resulted from a man and woman having sex was by definition a human being.

        How often do I need to point out that fetus means offspring in Latin. The synonym for offspring is child. The result of a man and woman having sex can only be a human being.

        People living back then weren’t stupid. They also lived closer to the land and almost everyone knew the basics of animal husbandry. They knew perfectly well that if they bred a bull to a cow the cow wasn’t going to give birth to a horse. They were going to get a calf.

        It was simply that “quickening” was the best indication that in more primitive times was pregnant at all not that it was a human being. That was never in doubt. In the 13th century when abortion first became a crime under English common law a person could die of an abscessed tooth or a common cold. Lots of things might have explained missed periods; just because a woman missed a couple of periods didn’t at all confirm she was pregnant. In those more primitive and frankly more sane times they would have considered anyone a lunatic if they asked, “OK, it’s alive, but is it human.” What else are you going to get after a man and woman have sex; a puppy? Off to the loony bin with you.

        As the medical arts advanced two commentators on British common law, Sir Edward Coke (1552–1634) and Sir William Blackstone (1723–1780), who had the most influence on the founders, indeed all educated colonials, confirmed that British common law no longer relied on a woman’s opinion. Abortion was a crime from the moment a medical practitioner could determine that a woman was pregnant with a living child. And as the earliest legal authorities beginning with Bracton writing c. 1256 unanimously confirm, that crime was homicide.

        In other words, abortion was a capital crime in the British empire, including the American colonies, before there was a United States. We inherited the common law tradition. In 1652 a Captain William Mitchell was convicted of intent to commit an abortion in a Maryland court when he either seduced or raped his 21 y.o. bondservant. He gave her a powerful abortifacient that nearly killer her as well as the child. (SCOTUS referenced this case in the court’s decision overturning Roe). A few years later a Francis Brooke was charged by another Maryland grand jury with murder. There were plenty of witnesses to his crimes; he too raped his young bondservant, got her pregnant, and publicly beat her in an attempt to force a miscarriage. When that didn’t work he too gave her a powerful abortifacient and she went into labor. The child was stillborn, and the midwife attested that the male child was born bruised, powerful evidence of the abuse. The midwife also testified that the child was approximately 3 months old; therefore before “quickening” (just check the pro-abort/anti-birth attempts to argue history and you’ll see they assert that “quickening” didn’t occur until the 4th, even 5th month. Ta da! The midwife was a “medical practitioner” per the standards of the day, thus her testimony and not the woman’s “opinion” was authoritative. He escaped punishment for murder, though, since he married his bondservant and thus disqualified her from testifying against her. All the other evidence was rendered hearsay. That seems to have been common in the British colonies at the time. Maidservants were advised to “keep their chastity” or at least get a written promise of marriage. And those written promises were enforced.

        (Abortion Rites: A Social History of Abortion in America, Marvin Olasky, Crossway Books, 1992)

        There are court records of criminal convictions for abortion in Great Britain going back to the 13th century and this was all before there was a single statute against abortion in either Britain or its colonies. Common law is established by courts by precedent. So it is simply dishonest of you to misrepresent the lack of statutory law as if that somehow be construed to mean that abortion was even legal prior to “quickening” let alone a “right” under custom, history, law, or tradition. The first English statute passed by parliament was signed into law in 1803. It simply codified what had long been illegal under the common law. Abortion was a crime at any stage. Lord Ellenborough’s Law removed the ambiguity regarding the punishment for pre-quickening abortions. They had long been illegal but per common law precedent they might have been charged as misdemeanors. The 1803 law affirmed that they were felonies, although they were punished less severely than post-quickening abortions which remained homicides just as they had been since the 13th century.

        Then there’s the simple fact is that medical knowledge had been growing, hence the reliance on medical practitioners to detect life rather than the mother’s opinion to determine life if there was life in the womb. By the late 1600s in Britain trained physicians and surgeons who were only called in for difficult births began to take an interest in the birth process, at first simply to improve the skills of midwives. Later they began to take on the role themselves as “male midwives.” While there were some educated female midwives most were not and they still observed a lot of Medieval superstitions concerning pregnancy and birth. By the mid-1700s the medical specialty of obstetrics on a scientific basis was firmly established as a medical specialty (mostly in Britain and America as wealthier women preferred the better care of these doctors; Catholic Italy, Spain, and France were much slower to accept male midwives as it went against the church’s teachings on female modesty, so they preferred to keep childbirth an all-female affair).

        Beginning in the mid-1700s (the Medical College of Philadelphia was the first) at least three medical schools were established in America and obstetrics was the first medical specialty taught at all of them. The training was equal to anything available in Europe so aspiring doctors didn’t have to go abroad for an excellent education. The idea that “quickening” (i.e. when the mother could feel the child move in the womb) was a significant line of demarcation eroded as the obstetricians’ knowledge of anatomy and physiology grew.

        This text is from the early 19th century but it reflects and confirms the growing understanding of when the fetus is alive and the common law legal situation about abortion in the United States.

        https://babel.hathitrust.org/cgi/pt?id=nnc2.ark:/13960/t0zp4v261&view=1up&seq=33&skin=2021

        (Dr. John Beck, vice-president of The Medico-Chirurgical Society, University of New York, 1817, An Inaugural Dissertation of Infanticide)

        After discussing the absurd, arbitrary, and irrational beliefs of the ancients concerning when a fetus is alive, Dr. Beck goes on to deride the absurd and irrational belief that the fetus is only alive at “quickening:”

        In modern times, an error no less absurd, and attended with consequences equally injurious, has received the sanction, not merely of popular belief, but even of the laws of the most civilized countries. The error consists in denying to the fœtus any vitality until after the time of the quickening. The codes of almost every civilized nation have this principle incorporated into them, and accordingly, the punishment which they denounce against abortion, procured after quickening, is much severer than before

        Note Dr. Beck’s observation on the legality of abortion in the U.S. which, as a doctor, he was required to know in order to keep within the bounds of the law. He doesn’t say that abortion before “quickening” is legal let alone a right (abortion at any stage was never considered legitimate or legal under the common law) Abortion after “quickening” was simply punished more severely than before.

        Why did he regard this modern superstition as absurd as those of the ancients? Because the medical profession already knew better. The fetus is simply too small for its movements to be detected by the mother but it is “stirring in the womb.” And English common law simply requires that; life commences when the fetus “is able to stir in the mother’s womb.” By the earliest decades of the 19th century obstetricians knew that happened before the fetus was large enough for the mother to feel that movement.

        Dr. Beck then goes on and supposes for the sake of argument that the fetus isn’t moving in the womb before quickening. That he stipulates changes nothing.

        But granting, for the sake of argument, that the fetus does not stir previously to quickening. what does the whole objection amount to? Why, only that one evidence of vitality, viz. motion, is wanting; and we need not be told, that this sign is not essential to the existence of life.
        The incompleteness of the embryo previous to quickening is no objection to its vitality. Life does not depend upon a complication of organs…Besides, upon this this principle, the vitality of the child must be denied after birth, because many of its bones, as well as other parts of its body, are imperfect.

        (Chapter II, Medico-Legal History; Of Abortion, pp31-33)

        Consequently beginning in the 1820s states began passing statutes criminalizing abortion at any stage of pregnancy. The goal of the common law tradition was to protect life. Since the medical profession now knew life began much earlier than suspected, and “quickening” was a meaningless line in the sand, abortion simply was made illegal across the board. To reiterate, under common law tradition in more primitive times ‘quickening’ was simply the best evidence a woman was pregnant at all; there were lots of explanations for missed periods that didn’t involve pregnancy. Now we knew better and quickening became an irrelevant, obsolete non-scientific term. I will leave it to attorney and law professor to put the final stake in the heart of the irrelevant, unfounded argument you are making, Fats:

        https://reason.com/volokh/2021/09/13/the-fact-that-x-states-failed-to-criminalize-an-act-in-1868-does-not-mean-that-committing-the-act-is-a-fundamental-right/#:~:text=The%20Union%20in%201868%20comprised%2037%20States%2C%20of,the%20person%2C%22%20with%20applying%20before%20and%20after%20quickening.

        The Fact That X States Failed To Criminalize An Act in 1868 Does Not Mean That Committing The Act Is A Fundamental Right

        An argument from Lawrence recurs in Dobbs.

        …There is another comeback in Dobbs. John Finnis and Robby George filed an amicus brief that urges the Court to overrule Roe. They make a similar argument as the one adopted by Justice White in Bowers.

        The Union in 1868 comprised 37 States, of which 30 had statutory abortion prohibitions. Most were classified as defining “offenses against the person,” with applying before and after quickening. And Congress, legislating for Alaska and the District of Columbia shortly after ratification of the Fourteenth Amendment, referred to unborn children as “person[s].”

        Aaron Tang wrote a response. He argues that Finnis and George miscounted the states. Indeed, he splices the numbers in a similar fashion that Eskridge did.

        After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 15 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 22 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified.

        Note the Leftist rewrite of history continues as Tang misrepresents the facts. Under the common law the residents of those states would not have considered abortions before quickening to be “perfectly lawful.” But, as Dr. Beck observed, not as serious a crime as those obtained post-quickening. But Prof. Blackman stipulates for the sake of argument that Tang’s numbers and assertions are correct to show he (and you Fats) don’t have a leg to stand on.

        I have no idea who has the better count. For argument’s sake, I will assume Tang is right. From an originalist perspective, the fact that 15 out of 37 states banned abortion at all stages is pretty damn good evidence that right was not fundamental. The threshold for a fundamental right is quite high. How can we say a right is fundamental if nearly half the states criminalized it?

        …Moreover, the fact that 22 states permitted abortion at certain stages suggests that this decision ought to be decided by the democratic process. This history supports the anti-Roe position: this decision about abortion belongs to the elected branches, rather than to the courts.

        What would it take to make the originalist case that the right to abortion is “deeply rooted,” and was considered fundamental in 1868? Perhaps if it was mentioned in the same breath as other well-known fundamental rights: the freedom of speech, freedom of conscience, liberty of contract, the right to keep and bear arms, and so on. We can cite chapter and verse to support these other rights. But simply looking to states that failed to criminalize an act is not enough…

        I doubt you’ll see the vacuousness of your argument, Fats, or if you do you won’t be honest enough to admit it.

        There was no Constitutional conflict between the 14th Amendment and states banning abortion outright. The Roe v. Wade decision runs directly counter to the plain language of the Constitution, or entire history, customs, and traditions. A central court deciding this issue for the entire country is in fact an outrage against our Constitution, our history, customs, and traditions. We have an 800 year common law tradition of outlawing abortion to protect life. We had a 174 year tradition from the year the states ratified the Constitution of leaving the matter entirely to the states. Including not interfering if states wanted to ban the procedure outright. Until in 1973 the SCOTUS committed a legal atrocity and usurped a power they didn’t have. Now the matter has been returned to the states where it always belongs.

        JohnSmith100 in reply to Fatkins. | July 9, 2022 at 9:21 am

        You need to start worrying about elections, accountability is coming.

        PlusUltra in reply to Fatkins. | July 10, 2022 at 3:11 pm

        Outlines?

        Ironclaw in reply to Fatkins. | July 10, 2022 at 6:59 pm

        Have we read the same decisions? I don’t think so, because they were actually going with the text of the constitution which is why communists like you hate the decisions.

    The Constitution is a document of convenience for the left, and a SCOTUS they control is the only legitimate one.

    Democrats are toxic to the United States.

    Why isn’t the rule in the Constitution Constitutional?

    No one doubts that the rule in the constitution is constitutional. The question is whether the rule in the state constitution is also constitutional. You are claiming that it is not. That may be the case, but it’s far from obvious. The court needs to hear evidence and arguments and think hard about it. I expect that the conservative justices will split on this one, since there’s no obviously correct answer.

    You are also arguing for the Dems’ NY map to be reinstated.

      4rdm2 in reply to Milhouse. | July 5, 2022 at 9:59 am

      No, Milhouse. The New York situation is NOT the same and you know it. There is a large difference between enforcing something which is in the constitution of the state and imposing something which isn’t.

        Milhouse in reply to 4rdm2. | July 5, 2022 at 10:32 am

        The NC requirement is also in the state constitution. So says the state supreme court, which is the only authority on that subject. The US supreme court must accept that as true. That makes NC exactly the same as NY.

        Literally the ONLY QUESTION before the supreme court is whether the state constitution has any authority over its legislature when it’s performing a federal duty.

Mauiobserver | July 3, 2022 at 9:25 pm

It appears that the constitution putting power in the peoples representatives is once again thwarting Democracy defined by the left as both mob rule and the worst of machine politics.

Steven Brizel | July 3, 2022 at 9:28 pm

This case if decided in accordance with the Court’s decision in Bush.v Gore would ensure that the Electors Clause is followed and not ignored

    Milhouse in reply to Steven Brizel. | July 4, 2022 at 7:48 pm

    Not really. The question was raised in that case, but not decided. The case was decided on other grounds.

      Steven Brizel in reply to Milhouse. | July 5, 2022 at 8:40 am

      Many if not all of the briefs filed by Democratic AGS in 2020 tried to distinguish Bush v Gore, especially the concurrence by the CJ,

      A clear reading of Bush v Gore emphasized that only legislatures, as opposed to courts and bureaucrats, designate and select electors- since cert was granted now, I think this case presents the conservative majority with a clear opportunity to reject any selection of electors by anyone other than state legislatures as explicitly violating the Electors Clause well in advance of 2024..

        Milhouse in reply to Steven Brizel. | July 5, 2022 at 10:35 am

        I read Bush v Gore a long time ago, but my recollection is that this question was raised but not decided. The court majority ended up saying basically “That’s an interesting question but we can resolve this without answering it, so we’ll do that”.

          Edward in reply to Milhouse. | July 5, 2022 at 12:43 pm

          Well, that would comport with the court’s usual effort of attempting to seek the simple answer which allows avoiding settling major questions.

Justice Alito:
“We will have to resolve this question sooner or later, and the sooner we do so, the better.”

Oh, yeah!

This case will give them conniptions when the Court holds that the words of the Constitution mean what they plainly mean,

And imagine the conniptions when the Court holds that affirmative action is unconstitutional (all that stuff about equal protection under the laws). Those cases are SFFA v. UNC and SFFA v. Harvard.

    Dimsdale in reply to fscarn. | July 4, 2022 at 10:43 am

    Bingo!! You can’t fight racism with more racism!

    Equality eschews racism, “equity” requires it.

    Milhouse in reply to fscarn. | July 4, 2022 at 7:49 pm

    Nobody argues that these words don’t mean what they say. The question is entirely about what the constitution doesn’t say. It doesn’t address whether the powers it gives the state legislatures are plenary, and to be exercised entirely as those legislatures wish, regardless of anything to the contrary in their own constitutions.

The reason they are crying is that this is their go to strategy to manipulate elections to engage in shenanigans. Legislature passes a strict but fair election statute? No problem, find a friendly Judge to issue an injunction. The Sec of State is being a meanie to a blue county because their voter rolls are filled with errors and demands they fix it? Same.

The d/prog will lose their damn minds over this should the CT rule that the Constitutional language is not only clear but actually means what it says. If you thought the last ten days was a high water mark for d/prog heads exploding and rage you haven’t seen anything yet.

    Voting isn’t complicated. Why else would politicians (and now political courts) insist on changing the rules just before elections than to manipulate the outcome in favor of one party or another? Complicating a very simple process is an invitation (or more precisely, a design) for cheating. Verifying a one-man, one day, paper ballot voting system with the proper chain of custody precautions is the fairest, most efficient and most auditable method.

    Ballot harvesting and electronic machines with controlled by 3rd parties is just a more complicated game of Three Card Monty. It creates so many hurdles to address that take decades to work through and never gets resolved.

    Lets go back to the old system: one day, one man-one vote, paper ballots and clean registration lists. It already provides remedies for those who can’t get to the polls on time. If people don’t want to vote or can’t because they are dead or moved, that is just the way it is. Voting isn’t mandatory and frankly, I believe too many idiots vote already.

      The Gentle Grizzly in reply to Pasadena Phil. | July 4, 2022 at 7:49 am

      One man vote? You mean, repeal the 19th Amendment?

      /just thinking out loud….

      SC Reader in reply to Pasadena Phil. | July 4, 2022 at 12:09 pm

      There will always be some absentee voting needed. Not everyone can be in the polling place or even in the precinct on election day. There are illnesses and injuries requiring hospitalization or being housebound. There are voters who are in the military. There are others who have to travel for legitimate reasons, work being just one. Some of us work the polls in a different precinct–actually a better practice than working in our own precincts.

        That need has been accommodated long before we departed from the paper ballot.

        Arminius in reply to SC Reader. | July 7, 2022 at 8:48 pm

        Why is absentee voting needed at all? Let’s be more like Europe. In France there is no mail-in voting, And like 36% of European countries there is no absentee voting even for French citizens living outside the country. The Embassies and Consulates set up polling stations and, like every other French citizen, they have to go in person, show ID, go into a private booth, mark their paper ballot, put it in an envelope and drop it into a transparent ballot box.

        The paper ballots will be counted by hand after the polls close.

        If someone can’t vote in person due to work or some sort of medical procedure/condition then the voter can designate a proxy. They still have to go to city hall and present ID, provide proof of valid reason to vote by proxy such as a letter from your employer or doctor/hospital, then fill out and sign a request form identifying the registered voter who will be their proxy.

        Then the proxy has to go to the polls and show ID in order to vote. A proxy can vote for only one other voter residing in France. The same proxy can vote for another registered voter living abroad.

        Some European countries are even stricter. In Poland a voter wishing to vote by proxy has to actually have a power of attorney designating the proxy. And the power of attorney can only be approved by the municipal mayor.

        Other countries get along just fine without mail-in ballots, absentee ballots, and even early voting. We can, too.

Bruce Hayden | July 3, 2022 at 10:28 pm

Justices Thomas, Alito, and Gorsuch were the ones in early 2021 willing to follow Bush v Gore, in rejecting the various shenanigans the Dems used to steal the 2020 election. None were legislatively approved, and most were imposed by either Soros funded Secretaries of State, or by local election officials in Dem machine cities. That means that the addition of Kavenaugh here is significant. If they can pick up Barrett, which I think that they can, then CJ Robert’s will likely follow suit.

We’re a republic no matter how many time the loser democrats keep pretending we’re not. They can GFThemselves with a cactus. For infinity.

History has also shown they accuse the rino doormats of what the democrats are doing to try and throw people off balance for when they’re caught. So what this is all about is dems trying to throw mud in the voters eyes as they try to rig the election for themselves.

Saw a political sign today (roughly the size of a for sale sign) for a democrat woman today. Sign was in all red with a tiny little circle with an even smaller ass. Our area leans conservative so she’s trying to hide her affiliation with these bullschiff signs. Driving by you’d not be able to tell it’s an ass other than if you know the woman running, then you know she’s an ass.

filiusdextris | July 3, 2022 at 11:26 pm

What would be the remedy if a legislature were to do something egregious to disenfranchise voters they don’t like? Vote them out next term, I understand, but is there nothing else in the short term? Once the Supreme Court make rules to stop whatever’s egregious, however, then it is, de facto, deferring to the state courts to some extent. I don’t know if the Supreme Court wants to invent a rule, but that’s the only way to stop abuse, given the plain text. It’s an interesting tension, and I look forward to the opinion. They may choose to grant the NC legislature a win in this case and sidestep the critical issue.

    CommoChief in reply to filiusdextris. | July 4, 2022 at 7:57 am

    If a particular State legislature passed a law that was unconstitutional on its face, which is what you described, it could be stopped by a CT injuction because it is unconstitutional just like every other legislative act.

    Assuming the independent legislature theory prevails regarding elections law then all that means is the CT can’t nitpick the statutes and choose to alter them based on a policy preference. The elections statute would still have to be within constitutional limits.

      Milhouse in reply to CommoChief. | July 4, 2022 at 8:21 pm

      No, that is not correct. Courts can never “nitpick the statutes and choose to alter them based on a policy preference”. The argument here is that when state legislatures make laws for federal elections they are exempt from state laws and constitutions.

        CommoChief in reply to Milhouse. | July 4, 2022 at 9:58 pm

        Milhouse,

        CTs have a long history of allowing deviations from the elections statutes. Every time a political subdivision is unprepared at a polling place and starts late or runs out of ballots a Judge will intervene and require the polling place to remain open past the statutory closing time.

        That might be a good solution. It might be fair. All of may applaud that particular solution. However, if the election statute doesn’t call for that action as a specific remedy under those circumstances then the CT has intervened to substitute its judgment in place of the legislature.

        Good intentions and widespread agreement are not the issue. The only issue is was the statute followed to a t? If not who authorized the deviation? If it wasn’t the legislature in an emergency session then whomever took it upon themselves to deviate from the statute didn’t have the approval of the legislature and did in fact substitute their policy preferences.

          Milhouse in reply to CommoChief. | July 5, 2022 at 12:02 am

          When courts do that they are interpreting the state constitution, or even the relevant statute, which either explicitly or implicitly requires such adjustments. For instance if the state constitution says people must be given adequate opportunity to vote, the courts have to decide what is adequate, and whatever that is overrides any statute to the contrary. Or simply if the state constitution guarantees a right to vote, and a person shows up at the designated time and there are no ballots, or the line goes out the door, then the court orders the polls to stay open later because to do otherwise would deny those people their constitutional right. The court is not imposing its policy preference, it’s enforcing the law.

          CommoChief in reply to CommoChief. | July 5, 2022 at 9:39 am

          Milhouse,

          If the statute calls for 5 days of early voting but a CT declares it insufficient and adds another 5 five days? That’s substituting its policy preference.

          If the statute calls for a +b + c to be present to accept an absentee ballot and the local election official doesn’t enforce that and a CT backs that decision they have substituted their policy preference for that of the legislature.

          Those are the types of actions that must be curtailed. Acknowledging that the legislature has plenary power over elections, within the bounds of the US constitution, stops CTs and local election officials.

          All that will happen as a practical matter is a return to granting the legislature deference and the election statutes a presumption that they are valid where there isn’t a prima facie conflict with the US constitution. Voter ID as an example.

          I see your concerns but they are IMO hypothetical. They can certainly be addressed should the legislature pass laws that are actually discriminatory, aren’t applied in a neutral manner or are applied to unfairly and unequally harm a particular person.

          The plaintiffs would need to show actual harm that is a legitimate violation of the US constitution. Where a state legislature had passed a change to their State Constitution regarding voting IMO, those provisions of the State Constitution could be enforced as well because the legislature would have ceded some of its authority.

          Milhouse in reply to CommoChief. | July 5, 2022 at 11:09 am

          Chief, you keep avoiding the point, which is that if the state constitution requires sufficient time, and the legislature provided only 5 days, which the court finds insufficient, then the statute is unconstitutional and the court must strike it down and order the extra days that it believes the constitution requires.

          If the statute calls for a +b + c to be present to accept an absentee ballot, and the court finds that this violates the constitution, and therefore orders the local election official not to enforce it, then it is not substituting its policy preference, it’s enforcing the constitution.

          What the NC legislature is arguing is that it doesn’t matter what the state constitution says. When it is exercising a power delegated to it by the US constitution it is bound only by that constitution and by federal statutes (to the extent those are authorized by that constitution). I’m not saying that argument is wrong, but you must acknowledge what it means. You can’t pretend that it’s about policy preferences, because it just isn’t. And if the NC argument is successful then the NY legislature’s map must be reinstated.

          Finally, your claim that “Where a state legislature had passed a change to their State Constitution regarding voting IMO, those provisions of the State Constitution could be enforced as well because the legislature would have ceded some of its authority” is just outright wrong, because legislatures can’t cede their authority. That’s fundamental. No legislature can bind its successors.

          Besides which, not all state constitutions are amendable by their legislatures. I don’t know the statistics, but many (most?) state constitutions are amended by the people, not the legislature. So even if legislatures could cede their authority, a constitutional amendment wouldn’t be such a cession. For instance the NY amendment that caused the legislature’s map to be thrown out was passed by a referendum, not by the legislature. So if NC prevails, the NY legislature goes directly to the nearest federal court and says “we drew this map as the US constitution authorizes us to, the state courts threw it out because the people presumed to limit our authority, but the supreme court just said the people can’t do that, so you must reinstate our map”.

          CommoChief in reply to CommoChief. | July 5, 2022 at 12:36 pm

          Milhouse,

          We have a fundamental difference of opinion on the limits of the judiciary. I realize that my views make me a barbaric outlier and many more people support your view. A prophet is usually unrecognized in his own time?

          The statutes passed by the legislature are (should be) presumptively constitutional where the explicit text of the constitution doesn’t address the statute when the legislature is carrying out an explicit power. Had the legislature wanted to apply another action or remedy they could have done so.

          IMO, I say again opinion, the role of the judiciary should be to review the statutory language and apply the explicit limits of the constitution to that statute.

          Where the CT can’t find an explicit barrier then they should leave it alone. Judicial review must be accompanied by judicial restraint. The cause of a great number of issues and controversies is the lack of judicial restraint. See Roe.

          Thankfully SCOTUS seemed to emphasize last term the importance of the explicit text.

        4rdm2 in reply to Milhouse. | July 5, 2022 at 10:00 am

        The can never? Milhouse THEY DO ALL THE TIME. That is the crux of the problem.

          Milhouse in reply to 4rdm2. | July 5, 2022 at 10:51 am

          No, they do not. They enforce the constitution, which is the law that binds the legislature.

          CommoChief in reply to 4rdm2. | July 5, 2022 at 11:23 am

          Milhouse,

          I sense we disagree on the role of the CT.

          When a State CT requires that the explicit text of State Constitution regarding a statute be adhered to I doubt we have any disagreement.

          The source of disagreement is whether the State CT is using it’s interpretation of non specific text as the basis to override the legislature (and thus the will of the people) by substitution of the CTs preferred policy. IOW misusing their authority to find a way to disregard the statute.

          State CTs unfortunately have a habit of this sort of thing. Adopting the independent legislature theory removes these opportunities for egregious actions by a CT.

          This is election law not esoteric. It’s straightforward. Election on Z day. Early voting from Y-Z. Hours of operation. Requirements for a ballot to be lawfully valid. Requirements for a voter to cast a lawful ballot. Requirements to be a enrolled on a voter registration list. Requirements for access, storage, counting, recount, audit. Augmented by ballot integrity, security and transparency. As long as they are not prima facie violations then defer to the legislature with the standard presumption that they are constitutional.

          When a CT attempts to rely upon some indistinct phrase in a State Constitution such as ‘right to free and fair’ elections as a basis to revoke the statute that isn’t a good faith effort. It’s bad faith to serve an ideological or political end.

          Milhouse in reply to 4rdm2. | July 5, 2022 at 11:43 am

          Chief, that is just not true. Constitutional requirements such as “free and fair elections” are not less binding just because they don’t specify exactly what they require. Like all constitutional provisions, that is for the courts to decide, and when the courts do that they are not imposing their policy preferences, they are doing their duty to interpret the constitution.

          The US constitution says that the people’s right to keep and bear arms shall not be infringed. It doesn’t say that that means states can’t have a “may issue” law for CCW permits. It doesn’t say that Congress can’t ban AR-15s, or handguns. It doesn’t say that there can’t be a 30-day waiting period for background checks. Those are all details that the courts must interpret, based on the “indistinct phrase” in the 2A.

          Likewise, the 1A doesn’t say that nazis can march in Skokie, or that a public school teacher has the right to pray in public, on public property, while on duty, or that printers’ ink and newsprint can’t be hit with an unreasonably high tax. It just has “indistinct phrases” that the courts must interpret; but when they do they are enforcing the constitution, not expressing their policy preferences.

          You may sometimes suspect that they’re ruling in bad faith, but the supreme court does that too. More to the point, when it comes to state laws the federal courts are required to accept the state courts’ interpretation, and may not substitute their own interpretation. So when the NC supreme court says the state constitution bans partisan gerrymanders, as far as every federal court is concerned that is just as binding as the NY courts’ decision saying the same thing. The fact that the NY constitutional provision is more explicit than the NC one is irrelevant.

          CommoChief in reply to 4rdm2. | July 5, 2022 at 12:43 pm

          Milhouse,

          See above response. As always a pleasure to discuss with you. We disagree on the scope of judicial review in that I would require judicial restraint to accompany it while granting the legislature the presumption of constitutionality where no prima facie violations exist and there is a neutral application of the statute.

          Obviously that’s a vision of a far more focused and constrained application of judicial review than is the current predominant viewpoint.

          Milhouse in reply to 4rdm2. | July 5, 2022 at 5:11 pm

          So how do you justify the courts striking down the legislature’s laws on the grounds that in their opinion they abridge the freedom of speech, or infringe the RKBA, or violate the right to be free of unreasonable searches and seizures? After all, the constitution doesn’t explicitly say that these laws do those things. It doesn’t say a ban on handguns infringes the RKBA, or that arresting someone because they looked at a copy funny is an unreasonable seizure. That’s just the courts’ interpretation, and you said that shouldn’t be allowed to overcome the presumption that whatever the legislature does is constitutional.

          If you don’t really believe that, then how do you distinguish those cases from a decision that closing the polls at 6:00 PM when they only opened at 11:00 AM violates a constitutional requirement that people have an adequate chance to vote?

          CommoChief in reply to 4rdm2. | July 5, 2022 at 7:00 pm

          Milhouse,

          How? Simple what does the Constitution have to say on the matter? If silent does the historical record support the statute?

          Add to that the perspective that the constitution exist to limit the power of govt, list several historical rights retained by individual Citizens that govt can’t encroach upon and retain others not specified to the people and the States.

          The impact of upholding this narrow aspect of election law; that the legislature does indeed enjoy plenary power because the constitution grants it alone power over elections. The US Constitution would provide ample safeguard to prohibit discrimination and attempts to disenfranchise.

          The early voting question is particularly useful. Example State Constitution says must be free and fair. Statute says 5 days of early voting. Historically no early voting was allowed.

          In this case there is zero support for a judge to require another 5 days. Would another 5 days be more free and fair? Ok sure. What about a month? Hell why not a year?

          No need to answer because there isn’t any limit other than a vague sense that we will stumble upon it and then agree that this is the point and no further.

          Interpretation of the constitution doesn’t have a limiting principle that can be articulated with any certainty as to the end of the judges authority.

          In contrast, application of the constitution coupled with restraint does have a clear limiting principle: the text of the constitution and the historical record.

          I am a bit of a Neanderthal on this point and I understand most won’t agree. Thankfully the SCOTUS seems to be ever so slowly moving back towards my view and away from allowing judges, agencies to invent authority.

          I’m with you on this, Chief. The Constitution is clear about who controls elections, and it does not include the judiciary in that. Now, if something in a state is unconstitutional, it can be brought to the Supremes, who can then decide based on precedent, the Constitution, and the facts of the individual case.

          Milhouse in reply to 4rdm2. | July 6, 2022 at 2:55 am

          You’re still avoiding the question. If your standard is that so long as the constitution doesn’t explicitly forbid something, the courts should not strike down the legislature’s statute based merely on general requirements that need interpretation, then how do you justify the courts striking down the legislature’s laws on the grounds that in their opinion they abridge the freedom of speech, or infringe the RKBA, or violate the right to be free of unreasonable searches and seizures? Those statements are no less general than “elections shall be free and fair”, or “voters shall be given adequate time to vote”. Either statements like that are binding, in which case courts have to interpret them, or they’re not binding and are mere decoration, in which case the 1A, 2A, 4A and 8A are all useless, and we have no protection for our most basic rights. That can’t be right.

          CommoChief in reply to 4rdm2. | July 6, 2022 at 9:19 am

          Milhouse,

          1A – censorship – is govt stopping speech, colluding or working with a non govt entity to do so? Prima facie
          Free exercise – govt stifling individual prayer or group prayer at lunch or break? Prima facie
          2A – is a law abiding Citizen being prohibited from keeping arms or carrying (bear) outside their home other than traditional historical places such as a polling place/CT house?
          prima facie
          4 A – got a warrant? Then come back with a valid warrant because unreasonable. A search incident to an arrest for a crime committed in LEO presence doesn’t need a warrant because reasonable.
          8 A – bail requirement can’t be used as pretrial confinement unless flight risk or risk to self /others.
          Cruel unusual? Where the punishment was standard at ratification then it’s good now.

          Here is the lens:
          1. Constitution limits govt
          2. Const. Lists several key historical rights that govt is prohibited from stomping on
          3. Const. Reserves others to State and people
          4. History – what is history of the issue? Especially clarifying are the statutes and State const. at ratification.
          5. What is govt doing? Are they acting in a legitimate State interest; exercising an enumerated power or an implied power necessary to do so?
          Caution – judges go off the rails here. Simply because it makes it easier or convenient do the State doesn’t mean it is necessary.

          Analogy – state wants to exercise an enumerated power to hang shutters. Historical record supports that but using wooden pegs. State wants to use iron nails.

          In this case at first blush the State can’t proceed. The State needs to demonstrate why they must deviate from wooden pegs. Just because they want to doesn’t cut it. Why not use a screw or glue or Velcro?

          The State should have to demonstrate actual need v a desire. Judges shouldn’t enable pulling up the constitutional anchor. When they do so via ‘interpretation’ we move further away from the constitution.

          Instead a philosophy of applying the constitution is much more straight forward maximizes enumerated rights of citizens and govt at all levels while limiting in fact prohibiting prenumbra and feelings.

          Look at Roe. Universally condemned for the tortured reasoning. Bad decision without constitutional basis. Came via Interpretation.
          Dobbs overturned 50 years and 60+ million abortions later using a textual and historical record basis.

          Bruen. CT struck down an attempt to effectively prohibit carry of firearms by NY. NY reasoning used classic squishy interpretation in attempting to justify stomping on the enumerated rights of Citizens.

          In essence they thought it was ok to do D because other CT had used interpretation to allow C because a CT had allowed B which the CT reasoned was very similar to A (A being the constitutional text and history)

          The philosophy of interpretation moves us further away from the constitution in a series of steps over time each rationalized as ‘well this is pretty close to the previous step so why not after all the govt has a job to do and this makes it easier’

          In my perfect world No interpretation of the constitution. Instead only application of the constitution and history to the Statute or regulation. Judicial restraint is a virtue.

          I realize this a departure from modern philosophy and mainstream thinking.

          Milhouse in reply to 4rdm2. | July 6, 2022 at 10:47 am

          And you continue to miss the point. By your standard courts can’t strike down any of these things, because none of them are explicitly in the constitution. Who says that “common sense” censorship abridges the freedom of speech? Who says that banning handguns abridges the RKBA? Who says searching without a warrant is unreasonable? The only possible answer is that the judiciary says, because that it its job. To interpret general statements in a constitution or statute and decide what specific things they require.

          There is no difference between “the freedom of speech and of the press”, and “sufficient time to vote”. Both are general statements and it is for the courts, not the legislature, to decide what the freedom entails, or what is sufficient.

          In this case the NC supreme court found that political gerrymandering violates the constitutional requirement that “elections shall be free”. That is not imposing a policy preference, it is doing the necessary work of interpreting what the constitutional phrase means. It has to mean something; and the only entities with the authority to say precisely what it means are the courts. That’s what the judicial function is.

          And when it comes to state laws, federal courts are not authorized to interpret them for themselves, and are required by law to accept the state courts’ interpretation. So for the purposes of this case SCOTUS must accept that the NC constitution does forbid political gerrymandering. The only question it has agreed to consider is whether that matters, for the purpose of congressional elections. It cannot draw a distinction between NC, where the prohibition is only implied, and NY where it’s explicit.

          Fatkins in reply to 4rdm2. | July 6, 2022 at 11:50 am

          @milhouse,

          well said, ive been trying to point these basic facts out to Commochief in another thread.

          CommoChief in reply to 4rdm2. | July 6, 2022 at 4:12 pm

          Milhouse,

          You asked questions of how I envisioned Application v interpretation. You specified several amendments from our Bill of Rights but without any specific scenario.

          I provided answers and scenarios outgoing how using a philosophy of text + historical record is much less likely to result in judicial activism (really creationism because creating new ‘rights’ or limits on rights is creating from whole cloth).

          Lay down the statute. Overlay the text of the Constitution. Now does the statute remain inside or outside the line? Can’t decide? Overlay the historical record. When dealing with questions of govt powers and the Constitution isn’t fully clear use the Declaration of Independence.

          Where the govt is asserting a power not enumerated and it would lead to establishing one of the specific or general abuses mentioned in the Declaration then a safe course is the statute isn’t constitutional.

          This is a philosophy of restraint v action. Quite the difference from modern jurisprudence though I note SCOTUS backed this view in:
          Bruen, Dobbs, EPA v WV

          All three were decided largely from the philosophy I describe. The progressive left and those who believe Judges and CTs exist to ‘create a better world’ are rightly horrified because their judicial philosophy which seems to view Judges as a sort of philosopher King was squashed 6/3.

          It’s a different way of viewing the role of our judiciary and places much stricter limits upon their powers. It’s past time we returned to it.

All of these panicmongers insist “2000 Mules” is a tinfoil-hat conspiracy theory.

    “2000 Mules” is further proof that the Republicans don’t want clean elections either. It’s not like the Democrats are the only cheaters. The Uniparty is safely protected behind rigged elections.

    Fatkins in reply to McGehee. | July 4, 2022 at 8:33 am

    2000 mules is a tinfoil hat conspiracy theory with zero basis in reality. Its a series of assertions on GPS data that vaguely ties unknown people to a vague location. The premise is that some people frequented the ballot boxes, which oddly enough are placed in heavily trafficked areas. That’s literally it. Its a rubbish documentary written by a convicted fraudster. Grifters will keep on grifting.

      mbecker908 in reply to Fatkins. | July 4, 2022 at 1:35 pm

      Joe Biden is a tinfoil hat conspiracy theory.

      Ironclaw in reply to Fatkins. | July 10, 2022 at 7:47 pm

      The same type of data they’ve used to arrest people and, in some cases, to convict them. The data is good and you hate it because you have no arguement against it. They won’t pull your pedophile from office at this point, regardless, but we do need to fix these problems going forward.

    Milhouse in reply to McGehee. | July 4, 2022 at 8:23 pm

    2000 Mules is long on assertions but very short on actual evidence. Most of its so-called evidence suggests a lot but proves nothing. Its story is plausible, and I think it’s likely to be true, but it doesn’t prove it.

A HuffPost analysis went further. “Siding with the North Carolina Republicans could effectively give all electoral authority to state legislatures, including in the approval of the winner of the state’s Electoral College electors,” Paul Blumenthal argued.

But this is what the Constitution already requires of the choosing of electors. Blumenthal is apparently aware that the failure to enforce this provision of the Constitution allowed Biden to win the 2020 election, and that enforcement of the constitutionally-mandated process will prevent a replay of many of the shenanigans that went on during the last election.

    The Uniparty despises democratic process. Everything always goes back to the states for resolution. “Power to the people” is what they don’t want. Even were Congress to propose changes to the Constitution, it has to go to the states for ratification. But that’s the point. The people like their Constitution the way it is! The only alternative for them is to force a dictatorship via intimidation and violence.

    We are already living in a bureaucratic tyranny. Now they want to codify the other three branches into the new system by eliminating the Constitution outright by packing SCOTUS or assassinating the judges.

    We don’t have the time or luxury of continuing to ignore it. Thank God SCOTUS has finally stepped to re-introduce Constitutional process. Now we need Trump to get in there and wreak havoc on the bureaucratic fourth branch tyrants and reinstate the three-branch constitutional system of government.

    If we are doomed to a lower standard of living, let’s balance the budget and dispense of the government welfare and regulatory stranglehold over our lives. Maybe that is what we need to become responsible adults again.

      CommoChief in reply to Pasadena Phil. | July 4, 2022 at 9:21 am

      Exactly! Those who subscribe to the d/prog vision and philosophy despise the public. They want to tell the public what to do and how things should be without any dissent. Those who dissent even on the slightest point are subjected to attack and being demonized.

      The d/prog and their totalitarian fellow travelers fear the public. They can’t stand the idea that anyone might disagree with them. That’s why the fear a fair and open election where each candidate must earn the votes of the Citizens. They would much prefer that their choice of candidate was unopposed because they fear their candidate might might be rejected.

    Milhouse in reply to DaveGinOly. | July 4, 2022 at 8:25 pm

    What they’re arguing is that the legislature can ignore the state constitution.

henrybowman | July 4, 2022 at 12:51 am

“a case that could concentrate an unprecedented amount of power in gerrymandered state legislatures”

Weren’t you the guys who were just boasting about what Chads you were at gerrymandering?

If they are hearing this case in October 2022 they have to rule on it by June or July of 2023, so upon announcement of that truly illegal decision the rioting would start way before the 2024 election. I find it very hard to believe that even these current 6 would be willing to say the Constitution allows a state legislature to mount a LEGAL voter election and then if they don’t like the outcome simply declare the loser the winner.

Yes the U.S. Constitution says legislatures which set up the LEGAL voter elections, BUT the only qualifier in the Constitution for the legislatures to get involved in that LEGAL election after it’s over is if there is what the Constitution calls “a failed election,” likely defined by fraud or some other special circumstance as the Florida legislature was getting ready to declare in 2000 if Gore won. Historically there has been only one truly failed election, the election of 1876 where fraud was proven to have been committed by both parties in several states. Eventually that was resolved by a bipartisan committee being formed to “determine” the President and Vice President.

The article leaves out some important things about the 2000 election. The Florida legislature was on the verge of passing a law to create a second slate of electors for Bush if Gore won the recount. The U.S. Supreme Court decided to end the election by declaring there wasn’t enough time to finish counting votes before Safe Harbor, so the legislature never finished voting on the law. The legal rationale for this set of Bush electors was going to be based on a contention that successive decisions by the Florida Supreme Court had thrown the recount into chaos. They actually had some ammunition for this contention in the form of the (liberal) Chief Justice of the Florida Supreme Court. He voted against continuing the recount under the revised counting standards, saying things had gone too far. Prior to that, he had supported the recount. He was outvoted and the recount recommenced. If Gore had won the recount two slates of FL electors would have been sent to the EC, and the House and Senate would have ended up deciding the President and Vice President. Control of the chambers was split by Jan. 6 2001, so if it had been party line votes the House would have chosen Bush as president and the Senate would have voted Lieberman vice president. So in getting ready to send the Bush electors, the FL legislature at least expressed a legal rationale for doing so, and obviously they never just up and declared Bush the winner regardless of the popular vote in the manner described in the article.

    mikeSan in reply to mikeSan. | July 4, 2022 at 2:46 am

    my post refers to the full Hartmann article

      mikeSan in reply to mikeSan. | July 4, 2022 at 3:52 am

      I see I’ve wandered onto this site by mistake, I was just looking for a place to comment on the Hartmann article since I’ve been banned by most of the progressive sites for saying Bernie Sanders must never be nominated. So I’ll leave you with this: if you’re OK with the idea of a state being allowed to change the outcome purely and only because they don’t like the outcome, how about if Trump or DeSantis wins Maryland and then Maryland goes, nope! We don’t care how many votes the Republican got, Biden is the winner.

        mikeSan in reply to mikeSan. | July 4, 2022 at 4:11 am

        Maryland Dem-dominated legislature, I meant to say

          CommoChief in reply to mikeSan. | July 4, 2022 at 8:19 am

          Honestly that scenario seems a stretch. This simply brings us back to the legislature setting elections laws which the Constitution explicitly gives them exclusive jurisdiction over.

          This laws would still be required to be within constitutional bounds. All this would do is prohibit the Judiciary or Executive from deviation from those laws.

          Once the legislature sets out the framework for conducting an election and awarding electors it wouldn’t be constitutional for a legislature to reverse the outcome because they don’t like the outcome.

          If the legislature wishes to retain the authority to independently choose electors without the input of the public via an election they could do so. But they couldn’t revert to that stance post election because their guy lost.

          If the legislature wishes to retain the authority to independently choose electors without the input of the public via an election they could do so.
          Absolutely not. The constitution guarantees each state a republican for of government. It also sets out that elections will happen. The state could not simply assign the electors based on its whims – even legislative whims.

          CommoChief in reply to mikeSan. | July 4, 2022 at 11:58 am

          GWB,

          A republic functions with the will of the people expressed in an indirect manner as opposed to that of a direct democracy where the public votes directly.

          The public elects the members of the legislature who then exercise the powers granted to it by the Constitution. One of those powers is the manner of choosing electors.

          The legislature could easily decide that they will choose the electors. That’s no different than the legislature exercising their power to pass statutes v a direct plebiscite.

          IMO it’s not a good idea but that doesn’t make it unconstitutional and doing so would be using a republican system of govt.

          Milhouse in reply to mikeSan. | July 4, 2022 at 8:37 pm

          Once the legislature sets out the framework for conducting an election and awarding electors it wouldn’t be constitutional for a legislature to reverse the outcome because they don’t like the outcome.

          If the legislature wishes to retain the authority to independently choose electors without the input of the public via an election they could do so. But they couldn’t revert to that stance post election because their guy lost.

          This seems incorrect. If the legislatures have plenary power to direct how the electors shall be chosen, it seems to follow that they may at one time say the electors shall be appointed by general election, and then when they don’t like the result they can change their minds and say they shall be chosen some other way. The question before the court now is whether a state constitution can require them not to do that.

          GWB:

          If the legislature wishes to retain the authority to independently choose electors without the input of the public via an election they could do so.

          Absolutely not. The constitution guarantees each state a republican for of government. It also sets out that elections will happen. The state could not simply assign the electors based on its whims – even legislative whims.

          That is completely wrong. The constitution does not say one word about electors being elected. The state legislature can absolutely prescribe some other way of appointing the electors, no matter how arbitrary. The only question now before the court is whether the state constitution can say otherwise. In the early years of the Republic, there were indeed states where the legislature chose the electors itself.

          A republican form of government has nothing to do with this. There’s nothing in a republican form of government that says how federal electors are to be chosen.

    Milhouse in reply to mikeSan. | July 4, 2022 at 8:29 pm

    BUT the only qualifier in the Constitution for the legislatures to get involved in that LEGAL election after it’s over is if there is what the Constitution calls “a failed election,”

    Bzzzt. You were making a certain amount of sense until this sentence. But this proves you’ve never bothered to read the constitution. The term “failed election” does not appear anywhere in it. That automatically disqualifies everything else you have to say on the topic.

“A new Supreme Court case is the biggest threat to US democracy since January 6”

That’s setting the bar at about zero then.

    mikeSan in reply to Gosport. | July 4, 2022 at 5:55 pm

    Am trying to reply to CommoChief . . .I agree it would be constitutional to set up an election in which the legislatures choose the electors INSTEAD of a voter election. However, to promise democracy and then yank it away if “the wrong guy won” would cement our status as a third-world country. By allowing the legislature to deal with “a failed (voter) election” the Constitution already has a mechanism in place. This is exactly what Trump initially asked of certain red legislatures, to declare failed elections because of fraud. All of them flatly refused. So when after that Georgia and others pass laws that say the legislatures have the final word, Is that just language to placate Trump voters who feel the election was stolen and when it comes down to it nothing will really change, or is it the genesis of something new.

    Hartmann’s overly simplistic election night scenario is of Biden winning all the same states in 2024 that he did in 2020, and then suddenly for zero stated reasons on election night Georgia followed by the others start wiping out their voter elections and declaring DeSantis the winner. It wouldn’t happen quite that way. The legislatures would have to meet and cast votes to invalidate the voter election and declare the state’s electors for DeSantis.

    (This legislature process was started in 2000 in Florida for Bush if Gore won, however they weren’t invalidating the voter election, they were declaring a failed election because of “recount chaos.” The U.S. House of Representatives would ultimately have voted on who won Florida, Bush or Gore,)

    My attempted point to Hartmann is that if the U.S. Supreme Court used the North Carolina case to put something like this into place, that a state legislature could invalidate the voter election and declare the loser the winner because “the wrong guy won,” the rioting would start immediately. There would be no waiting for 2024.

      CommoChief in reply to mikeSan. | July 4, 2022 at 6:59 pm

      As a hypothetical: lets say that in 2020 all the various changes to and deviations from the election laws hadn’t occurred. That the election laws were followed to a t instead of being altered wily nily. How does the legislature make a claim that they can ex post facto change the rules for selecting electors when there wasn’t any deviation from the election process they passed? They can’t. There isn’t a basis to support that.

      Now as we know in 2020 the election laws were not followed to a t. The CTs and Sec States and local elections officials made all sorts of deviations from and changes to the process laid out in the statute.

      In 2020 there was a basis for the legislature to claim that the election was flawed because clearly the executive branch and judicial branch and officials of political subdivisions didn’t scrupulously follow the process established by the legislature.

      In sum the legislature gets to make the rules for elections. Where those rules are adhered to then there’s nothing to worry about; whoever gets the most lawful ballots wins the end. If the election is sabotaged by a refusal to adhere to the elections laws I don’t have an issue with the legislature voiding the selection of electors, setting the compromised result aside and choosing their own slate.

      To do anything else provides an incentive to cheat. Remember that the only truly time sensitive outcome is the electors. The remainder of the offices can wait for adjudication or even a whole new do over election in Jan.

        mikeSan in reply to CommoChief. | July 5, 2022 at 12:16 am

        I got a good “laugh” when the Pennsylvania Republicans decided the mail-in law devised and passed by Republicans decided their own law was unconstitutional after they realized the mail-in ballots were going to 3-1 in favor of Biden . . something they never would have done if the ballots were going to go 3-1 in favor of Trump.

      Milhouse in reply to mikeSan. | July 4, 2022 at 8:39 pm

      By allowing the legislature to deal with “a failed (voter) election” the Constitution already has a mechanism in place.

      Again, you have clearly not read the constitution. It does no such thing. The term doesn’t even appear.

        mikeSan in reply to Milhouse. | July 5, 2022 at 12:01 am

        Sorry I was under the assumption it was in the U.S. Constitution. It’s in the U.S. Code

        3 U.S. Code § 2 – Failure to make choice on prescribed day

        Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.

        (June 25, 1948, ch. 644, 62 Stat. 672.)

        https://www.law.cornell.edu/uscode/text/3/2#tab_default_1

          Milhouse in reply to mikeSan. | July 5, 2022 at 12:09 am

          But the US code has no authority over how states appoint their electors. The US code is simply Congress’s wishes, and the constitution says this is none of Congress’s business.

          That’s why if you actually read the whole thing instead of just that section you’ll see that this law does not actually tell the states what to do. It simply promises the states that if they voluntarily obey these rules then the electors so chosen will be accepted without challenge. This is supposed to be an incentive to the states to fall in line.

          But (1) if a state doesn’t follow these rules Congress still has to accept its electors, so long as there’s no doubt that they’re genuine.

          (2) The guarantee that if they do follow the rules there won’t be a challenge is empty, because Congress can’t bind its successors, and in any case, the whole challenge system is of dubious constitutionality. It just states the position Congress took in the 1877 crisis, but who says Congress was right? Congress?! (This is basically John Eastman’s argument; he’s not obviously wrong.)

        mikeSan in reply to Milhouse. | July 5, 2022 at 12:24 am

        I have to reply here because it won’t let me reply to Milhouse response on U.S. Code. Thanks for the information, but isn’t that still what was being relied upon when Trump petitioned the red legislatures?

          Milhouse in reply to mikeSan. | July 5, 2022 at 11:12 am

          No, it was not. Eastman’s theory (which is not obviously wrong) is that the Electoral Count Act is invalid.

          Fatkins in reply to mikeSan. | July 6, 2022 at 12:16 pm

          @milhouse

          Eastmans legal theory is obviously wrong. Are you seriously contending that the Vice President alone decides which slates to count? Its absurd on its face.

          Milhouse in reply to mikeSan. | July 7, 2022 at 1:03 am

          Eastman’s theory may be wrong, but there’s nothing obvious about it.

          Someone has to decide whether to count an elector’s vote or not to. The problem is that the 12th amendment doesn’t say who. It makes sense to suppose that that power lies with the person or people whose job it is to do the counting; part of that job must be to decide what to count. But the 12th amendment is very sloppily written; it doesn’t say who counts the votes. It just says they “shall be counted”. And that is the crux of the problem.

          In 1877 the vice president asserted that since he was the presiding officer at the meeting, it was obviously his job to supervise the count, and decide which votes are valid. Congress asserted that it was its job, but as the VP correctly pointed out, Congress has no role in the count beyond being witnesses. There is no hint that they have any authority over it at all.

          The problem with this argument is that the VP doesn’t seem to have any real role either; he just chairs the meeting, while some unspecified people do the counting.

          But between the VP and congress the VP has a much stronger case.

          The Electoral Count Act is simply Congress asserting the same position it asserted in 1877. It simply put that position in writing, passed it as an act, and the president signed it. That doesn’t make it correct.

Election integrity is one of my top concerns right behind government spending and the economy. I look forward to a Constitutional ruling. Activist judges need to be addressed.

Democrats are acting insane over this because Judges cramming down the lefts unpopular and unwanted agenda is the only way it can get done

BTW, ever notice that critics never discuss the cases themselves but rather attack the judges? Process kills the Uniparty. Their opinions are set in stone.

State court stomped all over Pennsylvanias legislators Just another someone is getting in our way by the Marxists.

state legislatures that violate voting rights in federal elections
Here’s the key: By what authority are the state courts (or even federal courts) acting? If they’re basing it on federal law, then that federal law is arguably unconstitutional. If they’re basing it on a state constitution, then they have a better but not complete argument. (In a radical Founder’s solution, would the state be dissolved because their constitution doesn’t meet the requirements of the federal constitution? Now THAT would be a fun way to stir up the Progs!)

    Milhouse in reply to GWB. | July 4, 2022 at 8:45 pm

    You have it completely backwards. Federal laws on congressional elections (except as to the polling places for senate elections) are constitutional, and override state laws. The question here is about state courts striking down the state legislature’s choices on the basis of the state constitution. The NC legislature is arguing that can’t do that, because the legislature is exempt from all state laws when it exercises a federal power.

    And no, a state can’t be dissolved simply because its constitution is unconstitutional. However anything in a state constitution that is contradicted by the US constitution or by any federal law is automatically invalid.

I don’t think the case presents the issue as dramatically as these commenters say. The issue is whether state courts could invalidate political gerrymandering in the absence of any legislation or clear state constitutional provisions setting forth guidelines. In NY State, you will recall, the state courts rejected partisan gerrymandering because it was prohibited by state law, not because the judges felt is was unfair in some general sense.

But it’s the same question. When the US constitution gives a power to the state legislature, can that state’s constitution tell the legislature how it must exercise that power?

The NY state constitution is very clear; the NC constitution maybe not so clear; but that itself is a question for the state courts. It is the state courts that decide what a state constitution means, and the federal courts (including the supreme court) have to defer to that interpretation. That’s why federal courts routinely refer to state courts questions about how to interpret state law. So if the NC supreme court says “this is what our state constitution says”, then that’s what it says.

And at first glance it would seen that since a state legislature is a creature of its state constitution, that constitution should be able to dictate to it exactly what it can and can’t do. If it acts contrary to its constitution it is ultra vires.

The contrary argument is that when exercising a power not granted to it by the state constitution but by the federal one, or for that matter by federal statute, it is not bound by the state constitution. Alternatively, one could argue that the power granted by the US constitution is plenary, and therefore any provision in the state constitution that purports to limit that power is preempted by the supremacy clause.

Either way, though, what is true for NC is almost certainly also true for NY. So if the NC legislature’s map prevails then so must the NY legislature’s map.

Note that the US constitution gives state legislatures two powers: (1) to “prescribe” the “times places and manner of holding elections for senators and representatives”; (2) to “direct” the “manner” in which the state’s electors shall be “appointed”.

These two powers are not equal. The first power requires that elections must be held in some manner, and therefore a court could find that what the legislature prescribed is not within the definition of an “election”. Also the first power is completely subject to Congress. All federal statutes automatically override state laws for holding congressional elections. The only detail where Congress can’t override the state legislature is on the location of polling places for senate elections. If the state legislature says polling locations will be, let’s say, five miles apart, and Congress requires them to be no more than one mile apart, Congress wins on house elections, but the state legislature wins on senate elections. If the state insists, it can dictate that at the extra locations that Congress insisted on, people can only vote for their representative, and if they want to vote for senator they have to go to the locations it set.

The second power, to direct the manner in which the state electors shall be appointed, is much broader. It doesn’t even require elections; the legislature can direct that it will appoint the electors itself, or that the secretary of state will appoint them, that they will be chosen by lottery, or even that the Democratic National Committee shall appoint them. And Congress has no power to override the state legislature’s directions.

So a decision limiting the first power won’t necessarily limit the second power, though it might. If the supreme court says outright that a state legislature, in exercising a federal power, is independent of its state constitution, then that would apply to both powers. Likewise if it says the opposite. But if the decision is somewhere in the middle, then the outcome might be different for each of these powers.

    CommoChief in reply to Milhouse. | July 4, 2022 at 12:07 pm

    Milhouse,

    Excellent analysis and very clearly expressed.

    I believe the ‘hang up’ some are expressing about choosing electors is a form of recency bias in that they haven’t seen the legislature do that in modern history. Therefore, despite the explicit text, they assume it can not be done.

    IMO it would be stupid to do that but that’s much different than the constitution prohibiting it. If that wasn’t so then a great many legislative acts would fall victim to a test based on stupidity.

Ah yes … because fear mongering over nullifying Roe v. Wade worked SO well for them!

I do wonder about returning legislative powers usurped by the Feds back to the states. Happy that it will prevent large lib states like CA and NY from imposing their bat-shit-crazy on the rest of us via the Feds – but wonder if that won’t dramatically increase the SC caseload and become justification for expanding the SC to hear them all? Overwhelming the supreme court and/or taking advantage of their scheduling seems to be the strategy in NY’s new gun laws, mere days after the SC 2A ruling on NY’s concealed carry law.

I would hope the SC has authority to assess and sanction a state for frivolous laws and wasting the court’s time to discourage such games as NY seems to be playing.

    CommoChief in reply to MrE. | July 4, 2022 at 1:58 pm

    For election law challenges SCOTUS can always simply defer to the statute as passed by the legislature, tell any lower CT to do the same, then direct the lower CT to set a trial date to develop the case record but in the meantime the election will be run as the statute outlines.

    This wouldn’t apply for prima facie cases but for instances of policy preference. So a statute that disenfranchised women would be immediately addressed as unconstitutional for violating 19th amend. In contrast a case where a plaintiff wants an extra week of early voting in addition to that authorized by the legislature would need to wait.

The Court needed to do this a few years ago, for Pennsylvania.

That State elected R controlled Legislature, both chambers, but elected extreme radical leftists to their State Supreme Court. The Legislature drew new lines for Congressional Districts (as well as State Senate and Assembly Districts), and the State Supreme Court opined that these new lines were somehow “un-constitutional”, without finding anything in the actual State Constitution that they violated.

So, the Court then hired a supposedly “non-partisan” person, one guy, to redraw the lines. This “non-partisan” person drew lines that favored the D’s even more than the D’s own legislator’s proposed lines. The Court implemented these, and the result was that the D’s gained +5 US House seats.

R’s challenged this to SCOTUS, but at the time SCOTUS declared that elections were run by the States and therefore SCOTUS has no say. Which, obviously, is absurd for the very reason pointed out in the case discussed above: The US Constitution grants State Legislatures sole authority to draw districts. Not some person hired by the State’s high Court.

What a difference a few Justices makes.

All of the most insanely gerrymandered districts in the country were drawn by the Courts, including SCOTUS, and not the State’s Legislatures.

Just look at any State that has “VRA Districts”, created by the Courts and which cannot be altered by the Legislature without approval from the Court, and those are the districts that are ridiculously gerrymandered.

They are crafted to create 100% safe seats for Democrats, based on the incredibly racist argument that minorities (black and hispanic only, other minorities don’t get this privilege) can only be deemed to be represented in Congress if they are in Congressional Districts that are “majority minority”.

Weird that white people and other minorities are not similarly protected, or deemed to NOT be represented if they happen to live in a district that does not have a majority of their “race”.

The argument that Courts need to be able to “reign in” partisan legislatures is laughable on its face given the fact that the most political partisan, race based, hyper-gerrymandered districts in the entire country were ALL drawn by Courts.

    Philip in reply to Aarradin. | July 5, 2022 at 10:44 am

    SCOTUS re-drew districts?
    Didn’t SCOTUS just rule as to the legality of specific district boundaries which resulted in the the affected states being required to re-draw district boundaries?

Bonus: If SCOTUS decides this case properly, giving State Legislatures their Constitutional power back for drawing Districts, would this invalidate SCOTUS’ redrawing of Districts as well as State Supreme Courts’ redrawing of Districts?

In short: Would this obliterate, at long last, the incredibly racist “VRA” Districts that so many States were forced to draw per SCOTUS’ orders?

    Milhouse in reply to Aarradin. | July 5, 2022 at 12:15 am

    No, it wouldn’t, because those were all done pursuant to federal law, which overrides the state legislatures’ powers over congressional elections.

      Aarradin in reply to Milhouse. | July 5, 2022 at 2:51 am

      My mistake, I didn’t realize that Federal Law overrides the Constitution.

      You really are STUPID Milhouse.

      The case to be decided is about SCOTUS potentially ending Judicial rewriting of Congressional Districts – based on the US Constitution’s crystal clear requirement that State Legislatures draw them. And, you imagine that some federal law can grant SCOTUS authority to usurp this very power.

      As noted above, if State Supreme Courts rewriting of Districts is struck down, then so must be SCOTUS’ same error, along with the federal law, or at least one major section of it – part of the VRA itself could be scrapped.

      Just for clarity, since you are always so incredibly obtuse: There is no circumstance in which a Federal Law can override the US Constitution.

        Milhouse in reply to Aarradin. | July 5, 2022 at 11:28 am

        Aarrradin, you are obviously not stupid, but you are profoundly ignorant. Nobody claims federal law overrides the constitution. But federal law absolutely does override state legislatures’ authority to make rules for federal elections. Only a complete ignoramus could deny that. If a legislature draws a map that is contrary to a statute passed by Congress, that map is invalid, and every court in the country, from the supreme court down to the local county court, is required to strike it down. That is the law, and you are not entitled to dispute it.

        That is not the case with regard to presidential electors. State legislatures, when directing how their states’ electors shall be appointed, are not bound by federal statutes. They are of course bound by the US constitution, and the currently prevailing opinion is that they are also bound by their state constitutions. The NC legislature is now challenging that.

        The other exception is in choosing the location of polling places in senate elections. In that aspect only, state legislatures are not subject to federal law. For house elections they are, but not for senate elections. That’s a relic of the days when the legislature used to elect the senators itself, so the polling place was wherever the legislature decided to convene. If the legislature decided to go on a weekend retreat to some hotel, and hold the senate election there, it could do so, and no federal statute could prevent it. Now the people elect senators, but that old provision still stands.

          Ironclaw in reply to Milhouse. | July 10, 2022 at 7:56 pm

          Actually, no, federal law DOES NOT override the State legislature’s authority to make laws concerning elections in their State. That is EXPLICITLY in the Constitution which overrides every federal law short of a Constitutional amendment.

Meanwhile, back in the real world…
“In December 2021, Smollett was convicted of five felony counts of disorderly conduct; he was sentenced in March 2022 to 150 days in county jail. He has since been released on bond while his case is on appeal.”
Still….
But wait! There’s more!
The children of our great nation are constantly being told by the usual suspects that they ‘must’ listen to their lies and exaggerations (or else it’ll go on their permanent record) that America is an illegitimate nation, and it is time to turn it over to the people (with intellectually lazy minds) who promise to make it legit.

It has gotten really difficult to respect our nation’s institutions. However, America must be a most extraordinary nation, for how else could we have survived eight years of B. Hussein Obama and his band of misfits in the White House.
Y’all have a safe Summer!

    Ironclaw in reply to Philip. | July 10, 2022 at 7:57 pm

    I’d say the pedophile in the White House right now is more proof that the nation is not so extraordinary anymore.

A case similar to Moore v. Harper came up in early 2020, but had a 4-4 tie which left it to the lower courts to decide.
In Pennsylvania, the Congressional district map has been decided to the Pennsylvania Supreme Court (made up 5-2 D-R) since 2018. My district was redrawn so it could be a Democrat pickup.

The_Mew_Cat | July 5, 2022 at 10:58 am

I don’t think the Court will do anything in this case. The problem in NC is that the State Supreme Court are elected in partisan elections, so they are by definition nakedly partisan. That is ultimately a problem for the State to correct, if it wants to.

    CommoChief in reply to The_Mew_Cat. | July 5, 2022 at 11:32 am

    Given last term where the CT 6/3 majority demonstrated time after time in their rulings that the text of the Constitution actually matters IMO they will decide in favor of the idea that the legislature has plenary power within the bounds of the US constitution.

As one of those North Carolinians affected by the the redrawing of the congressional districts, I’m thankful for the upcomIng SCOTUS review of the redistricting. As a resident, who grew up and lived for 22 years in Charlotte, before moving to a suburb (for more than 32 years now) and trading a longer commute for lower taxes, real estate prices, a more relaxed pace of life and government more representative of my values, I gladly traded a longer, more expensive commute into the city (which I still make) for a better lifestyle. This past election, I found that I’d been moved back into a district that represents Charlotte and its values.

I was not surprised that the Democrat controlled NC Supreme Court pulled this switch off: NC Politics is just as corrupt as their Illinois brethren, just with less sophistication (google NC representative caught paying bribe in restroom). It’s also telling that Democrat NC Chief Justice, Cheri Berry is running to replace retiring (and corrupt, do nothing) Senator Richard Burr. And what would today’s politics be without the hyperbolic, end of the world rants of The New York Congressional Representative, Née Bartender, with an Economics (socialist) Degree.

As for me, I’ll probably leave the “Old North State” and the metro Charlotte (Metrolina) area, as I’m too old to put up with the “Bright Lights, Big City” attitude any longer. Charlotte has already encroached all the way to the county line, where our little town is now just another neighborhood in the Metropolis.

    Milhouse in reply to Jakespeed. | July 5, 2022 at 11:49 am

    SCOTUS will not be reviewing the redistricting. It will only decide one question: When a state legislature makes laws for federal elections, is it bound by its state constitution? If yes, then your current court-imposed districting stands. If no, then the legislature’s map takes over, and the same automatically happens in NY too.

Pure projection.
Remember when the queer community cried about the cruelty of not having the right to see their long-term loved partners last days, dying in hospital beds. Some on the right agreed, others claimed it was the camel’s nose under the tent wrt Gay Marriage. The queer community, Democrats & the media all responded with, “That’s just crazy talk”.

harleycowboy | July 9, 2022 at 10:16 am

Is there nothing that isn’t a constitutional crisis?

So, what they really mean it seems is that the justices will READ the constitution and then actually do the things it says. Yeah, it takes a really stupid person to think that’s bad.